Transfer pricing rules are the applicable regulations for transactions between related parties as defined by the Hungarian Act on Corporate Income Tax (CIT). In general, we can say that if a company meets at least one of the following criteria, then it will be deemed as related parties for income tax purposes:
- connected by direct or indirect majority (more than 50%) shareholding (voting rights)
- have a common direct or indirect majority shareholder
- is entitled to appoint/dismiss the majority of the executive officers or the supervisory board members of another company
In addition, the Hungarian head office and the foreign PEs/branches, as well as the Hungarian PEs/branches and the foreign head office qualify as related parties; thus, the transfer pricing rules also apply to these enterprises.
Furthermore, the definition of related parties was supplemented as of January 1st, 2015. As a result of the changes, the concept of common directorship was added to the definition. Thus, even if the ownership (voting) rights of one entity in another entity do not exceed 50%, but the entities in question have the same management, then the two entities are considered related parties and are subject to the obligations prescribed by transfer pricing rules.
Transfer pricing adjustment
The Act on CIT defines the cases when entities are obliged to apply transfer pricing adjustments. According to paragraph 18 of the Act on CIT, transfer pricing adjustment is required if the price used between related parties based on their agreement is lower or higher than the consideration used by independent parties within comparative conditions. The profit before taxation shall be modified by transfer pricing adjustment in the following cases:
- if the profit before taxation is lower due to the agreed consideration between related parties, the tax base shall be increased by transfer pricing adjustments
- if the profit before taxation is higher due to the agreed consideration between related parties, transfer pricing adjustment could be made as tax base decreasing items
Reduction of the tax base is only allowed if both parties are in possession of a declaration signed by both, declaring the difference between the arm’s length price and the price used, and the other party is subject to Hungarian corporate tax or a similar tax abroad and increase(d) its tax base with the similar amount. The reduction cannot be validated if the related party is considered as a controlled foreign company (CFC).
Transfer pricing adjustments are to be applied irrespective of other tax base increasing and decreasing items.
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The transfer pricing rules are determined by different legislations in Hungary, as well as by the Double Tax Treaties.
Act LXXXI of 1996 on Corporate Income Tax (CIT) determines the description of affiliated companies and the tax base modifying items related to the arm’s length principle. When applying the arm’s length principle, the CIT Act refers to the OECD Transfer Pricing Guidelines as the basis of the legislation.
The rules of Advance Pricing Agreement (APA) are included in Act CL of 2017 on Taxation, together with the sanctions applicable in case of missing transfer pricing documentation. The details regarding the submission of APA request can be found in Decree No. 48/2017 of the Ministry of Finance on Advance Pricing Agreements.
The details of requirements on transfer pricing documentation are included in Decree 32/2017 (X.18.) of the Ministry of National Economy on TP Documentation Requirements.
Also, Double Tax Treaties include necessary information when preparing transfer pricing documentation, as they define the place of taxation of the concerned entities.
Arm's length principle
Local comparables are preferred. However, if the reliability of these comparables is not sufficient or limited data is available from the region of Hungary, the use of pan-European comparables deriving from similar economic circumstances are acceptable as well. The tax authority also uses the same database as applied by the taxpayer for its reviews.
Arm’s length Range
Section 18 of the Corporate Income Tax Act was modified as of January 1st, 2015, to make the interquartile range applicable when determining the arm’s length price range in certain (reasonable) cases, if the following conditions are met:
- publicly available database is used for the data collection, and
- the analysis considers the data of at least 10 comparable companies for at least three financial years or more than 30 observations, or when the extent of the comparable sample (minimum-maximum range) exceeds 15 percentage points
Although, this regulation is not obligatory in all cases, we can state that using of interquartile range is safer than supporting its absence, so in 99% of the cases taxpayers are using it.
The Decree assigns that the taxpayer is obligated to consider all facts and conditions available during contracting, modification of the agreement and at the time of fulfilment, which are relevant for determining the arm’s length price.
However, the legislation defines the cost – benefit principle, based on which the taxpayer cannot be expected to bear disproportionately high costs related to completing the records. It is worth being aware of this principle, because the taxpayers have the possibility to refer to the abovementioned principle in case a fact or a circumstance was not detailed deeper in the documentation due to its high cost burden.
The above does not exempt, however, the taxpayer from the transfer pricing record keeping obligation.
Exceptions from Transfer Pricing
According to the Decree no. 22/2009 on transfer pricing documentation requirements, a company is obliged to prepare transfer pricing documentation if it had transactions with related parties within the given tax year.
There are some cases when the company has no transfer pricing documentation preparation liability, even though there was fulfilment with related party:
- the transaction was made based on agreement with an individual
- the company is considered as small-sized enterprise (according to the Act on CIT)
- the arm’s length price was determined by the tax authority in the form of a resolution as provided by the Rules of Taxation (in the framework of the so called “Advance Pricing Agreement” (APA) – if there was no change in the facts fixed in the APA resolution
- recharge of consideration for the sale of product or service in the same amount to related party(ies) – if the seller or party bearing the cost is not affiliated company
- free cash transfer and takeover between associated companies
- transactions performed on stock exchange being subject to the Act on Capital Market, and for applying other official price or the fixed price specified by law
- the arm’s length value of the transaction (excluding VAT) between associated companies does not reach HUF 50 million (~ EUR 160,000) within the tax year (the contracts which may be consolidated are to be considered together)
When calculating the limit set by the Decree it is important to know that if the annual report is prepared in foreign currency, the exchange rate of Hungarian National Bank valid on the last day of the tax year is to be used to determine the value of related party transactions in Hungarian Forint.
Until the modification of the Decree in 2013, the cumulated value of all fulfilments from the date of the contracting until the end of the tax year had to be considered for determining the transfer pricing obligation. This rule is still relevant because the tax authority may request the documentation within expiration time during an inspection.
According to the Hungarian transfer pricing regulations, the designated methods are:
- the comparable uncontrolled price (CUP) method
- the resale price method
- the cost plus method
- the transactional net margin method (TNMM)
- the profit split method
Hungarian rules rely on the principle of “the most appropriate method”, meaning that the designated methods are equal (there is no hierarchy between them). Other methods may be used after the listed ones have been eliminated.
As of January 1st, 2018, taxpayers may choose to prepare documentation based on the “master file – local file” concept. The documentation regarding FY 2017 can be prepared based on the former rules as well. Applying the new concept is, however, obligatory from FY 2018.
For low value adding services, simplified documentation may be prepared if certain condition are met.
Consolidated transfer pricing documentation
According to the Decree, as a general rule, companies are obliged to prepare transfer pricing documentation for each transaction separately. However, the Decree gives the possibility for taxpayers to prepare consolidated documentation on transactions meeting the following requirements:
- the subject matter of the agreements and the relevant conditions of the fulfilment of the subject is the same and pre-recorded, or the differences of the conditions are not significant, or
- the agreements are closely related,
provided that the consolidation does not jeopardize the comparability.
In case of choosing the preparation of consolidated documentation, the company shall present the reason for the consolidation in its documentation.
Updates and modification of the documentation
There are no specific rules under the Hungarian regulations regarding the annual updates, however, based on the general rules, the transfer pricing report must be updated if certain conditions have changed in the tested financial year, and those changes influence the pricing mechanism.
Regarding the benchmarking analysis, the Hungarian tax authorities prefer database search updates on a yearly basis.
Retrospective modification of the documentation was allowed without limitations before the Decree 32/2017 entered into force. From FY2018, making changes in the transfer pricing documentation is allowed only in the case if an error affecting taxes or arm’s length prices was detected in a completed document.
Documentation does not have to be submitted to the tax authorities, however, it should be provided immediately upon request. The statutory deadline for the preparation of transfer pricing documentation is the filing date of the corresponding year’s corporate income tax return.
The deadline for finalizing the corporate income tax return is May 31st for calendar year taxpayers. For non-calendar year taxpayers, the filing deadline is the last day of the fifth month following the balance sheet date of the financial year.
If the taxpayer has prepared the Local file until the deadline, the term for the preparation of the Master File may be prolonged until the foreign parent company’s documentation deadline but no later than 12 months following the last day of the financial year.
Statute of limitation
The statute of limitation is five years from the last day of the year when the concerning tax return is due.
Transfer pricing documentation and supporting documentation may be compiled in languages other than Hungarian, but the taxpayer is liable to present a Hungarian translation of documentation prepared in languages other than English, French, and German, at the tax authorities’ request, by the deadline specified.
Masterfile-local file concept
In 2017, Hungary adopted the OECD’s Masterfile-local file concept, which can optionally be used for FY2017, but obligatory from FY2018, meaning that from 2018 it is no longer possible to prepare standalone documentation. Hungarian legislation basically follows the OECD recommendations on this two-tier documentation structure, but the Decree 32/2017 (X.18.) of the Ministry of National Economy specifies some additional requirements which shall be met by the structure and substance of the Hungarian transfer pricing documentation.
Regarding the purpose of the documentation, the Masterfile presents the common characteristics of the group’s general business strategies and operations and the comprehensive functional analysis analysis, and a Local file presents the local subsidiary’s contractual details and elaborates on the arm’s length price of its intra-group transactions.
Documentation of low value-adding intra-group services
Simplified transfer pricing documentation can be prepared for transactions with low value-adding if the requirements determined by the Decree are met.
The conditions are as follows:
- The arm’s length value of the transaction does not exceed HUF 150 million (~ EUR 470,000) in a tax year and
- The revenue from the transaction does not exceed 5% of the sales revenue of the service provider.
- The cost of the transaction does not exceed 10% of the operational costs and expenses of the service recipient.
- The arm’s length remuneration is established upon the cost plus method.
- The applied mark-up is in the range of 3-7% (This constitutes an arm’s length mark-up).
Advance Pricing Agreements (APA)
Advance Pricing Agreements (APAs) are determined by the Rules of taxation and have been available since January 1st, 2007. The taxpayer has the possibility to request the tax authority to define the method to be applied, considering the facts and conditions and range of prices to determine arm’s length price to be used between the related parties in the future.
The tax authority includes the outcome of the examination in the resolution.
The term of the resolution is a fixed term of three to five years. But it could be extended by an additional three years, based on the request of the involved related parties.
APA filing fee
The official filing fees for an APA, payable to the Hungarian Tax Authority, are 2,000,000 HUF for an unilateral statement. In case of multilateral statement the fee is 2,000,000 HUF multiplied by the number of parties involved.
In case of rejected filing, or in case of withdrawal of the request the 85% of the fee is payable.
In case of request for prolongation or modification of statement the fee is 50% of the originally paid fee.
Fee of personal consultation is HUF 500,000.
If the tax base adjustments required by the tax authority based on transfer pricing rules result in tax default, the standard assessments — tax penalty and late payment interest — will be due in accordance with the general rules.
Furthermore, if the taxpayer fails to present appropriate transfer pricing documentation upon the request of the tax authorities, it may be fined up to HUF 2 million per related-party transaction. In case of repeated violations of the documentation obligation, the taxpayer may be penalized up to HUF 4 million, and in case of repeated default related to the same transfer pricing report, the tax authority may impose default penalty even up to HUF 16 million per related-party transaction.
Late payment interest may be levied based on the additional tax assessed by the tax authority. No late payment interest should be assessed on default penalties levied due to not having appropriate transfer pricing documentation.